Notes on the U.S. Constitution

This document contains my personal notes about certain portions of the
United States Constitution. Areas of the Constitution that I needed
clarification upon are included here, with my findings. Where ever necessary
and proper, I have included the sources for what I discovered. Where there is
no source, it is most likely that I interpreted the text myself, paying close
attention to the text or looking up the meanings of certain words or phrases
not in common usage or not common in today's vernacular.

The Electoral College is a peculiar American institution. When Americans
vote for President and Vice-President, they do not actually vote for those
people, but for electors. These electors meet in their state capitals after the
general election and cast votes for President and votes for Vice-President.
Though electors are pledged to the candidates of their party, there is nothing
in the Constitution requiring them to so vote — and, in fact, every so
often an elector defects from his party's candidates, though the effect on the
election is usually nil. Some states have laws against electors casting such
"faithless" votes, but it is unclear if anyone could actually be prosecuted
under such laws, since the electors are protected by the Constitution (though
not in so many words).

Jeff Greenfield, formerly of ABC News and now with CNN, wrote a very
interesting, irreverent tale about the Electoral College, called The
People's Choice. It can be found on the Constitutional Bookstore Page.

The authors were concerned about the definition of treason. They thought
that it was used too broadly to define any dissenting opinions. Their new
country would be much stricter about what treason was, and how one would be
accused and convicted of it.

Treason, then, is defined only as going to war against the USA, or aiding
the enemies of the USA. To be convicted, the accused must confess to treason,
or be accused by two direct witnesses of the treason.

The authors were also concerned that the person convicted of treason be the
only one to suffer for the treasonous acts. The Constitution explicitly states that
there may be no "corruption of blood," or that the children and relatives of
the traitor not be considered traitorous simply by relation; the "no
forfeiture" clause basically means that once the traitor dies, "payment" for
the crime ends.

Note the following small detail: the President is not a part of the
amendment process. So what difference does it make when the President says that
he or she does not like a particular proposed amendment, and they will not
support it? None. At least, not technically.

Now, obviously, the world is not sterile, particularly in Washington. When a
President expresses reservations or dislike of an amendment or proposed
amendment, it is obvious that any President worth electing knows darn well that
the Executive has no veto over any amendment. The process is left completely in
the hands of the Congress and/or the States. However, the President, as
presumed head of a political party, has power over those in the same party -
or, if not power, at least some influence.

Because two-thirds of both houses must pass an amendment, and two-thirds of
both houses are required to overturn a presidential veto, the framers may have
decided to leave the President out for the sake of brevity. However, since the
arguments of the President for the veto could change some minds between the
passage vote and the veto vote, it is more likely the Framers just felt that
amendments were something best left to the states and the representatives of
the states.

The Supreme Court did deal with this issue, following the ratification of
the 11th Amendment. It was argued that the
amendment was invalid because the amendment was not passed to the President
prior to being passed on to the states. But in Hollingsworth v Virginia
(3 USC 378 [1798]), the Court wrote (in a footnote): "The negative of the
President applies only to the ordinary cases of legislation: He has nothing to
do with the proposition, or adoption, of amendments to the Constitution."

Only thirty-nine people signed the finished product of the Constitutional
Convention. In all, seventy-four people were selected to attend the Convention,
but only fifty-five actually attended. Some of these left before the Convention
was complete, some for personal reasons, some to protest the Constitution.
Others remained at the Convention until the end, but then refused to sign. The
following is a list of those delegates who attended the Convention but who did
not sign the Constitution, and the reason they did not sign:

It should be noted that John Dickinson is officially listed as a "signer,"
but he did not actually sign the Constitution. Dickinson fell ill during the
convention and was unable to attend on the day of signing. He authorized George
Read to sign for him by proxy.

In my opinion, the First Amendment is the single most important part of the
Constitution. It protects some of the most basic human rights and reflects a
view of the dangerous places government might tread.

The ability to speak your mind is a right that Americans take for granted.
Imagine being too frightened by the possible consequences of speaking out to
actually do so. Your opinion would not matter — even your vote would be
corrupted. Even as important is the right to petition your government —
not only can you have an opinion about your government, the government must
listen to you (though it need not heed you — but that's what elections
are for).

Some of the first colonists of the nation for which the Constitution was
written had been seeking to escape religious persecution. The constitutions of
several of the states prohibited public support of religion (though some did
explicitly support or demand adherence to Christianity). Above all, the many
varying sects of Christianity in America required that to be fair to all, there
could be preference to none. It would have been disgraceful for anyone to wish
to leave the United States because of religious persecution. So the authors
decided it best to keep the government out of religion. This is not to say that
the United States was not or is not a religious nation. Religion plays a big
role in the everyday life of Americans, then and now. But what the authors were
striving for is tolerance... something I fear contemporary Americans are
lacking.

As for the press, the authors regarded a free press as almost a fourth
branch of government, constantly keeping tabs on the government's activities
and actions. Though today's tabloid papers and television might give one pause,
this kind of trash is a small price to pay to ensure that any news organization
can rest assured that it can report freely on the activities of the government.
Many other organizations in other nations have to worry about toeing the
state's line or be shut down. How objective do you think a reporter can be when
his life could be ended because of a critical story?

According to the GPO,
this is one of the least cited parts of the Constitution in federal case
law. The only one the GPO does cite is an interesting case that is actually
fairly recent (Engblom v. Carey [2nd Circuit Court]).

In 1982, a group of prison guards went on strike in New York. Some of these
guards rented housing from the prison, in a building about a half mile from the
prison. When the guards struck, the National Guard was activated by the
Governor to take over for the guards. The quarters rented by the guards were
used to house the soldiers. A pair of the prison guards sued the Governor and
several other officials on the basis that the 3rd Amendment had been violated,
and that they had been denied due process under the 14th Amendment. In state
court, the claim was summarily dismissed.

On appeal and reappeal, the Circuit Court upheld the lower court's ruling,
and found that the 3rd Amendment had not been violated for several reasons;
primarily, they found that the rented apartments were not required to be used
(unlike the apartment of, say, a building super), and that in no other way did
the guards "own" the property the soldiers were housed in (this being a
traditional test of whether someone's rights of property are being violated).
On the question of due process, the Court had other opinions that you can
research if you are interested.

Note well this. Anything not expressly granted to the Federal government is
reserved for the States or the People. Although this amendment is very
liberally interpreted, it is one of the tenets of the Constitution. This
amendment is also known as the States' Rights Amendment.

This Amendment was designed to prevent a citizen of one state from bringing
suit against another state in federal court, modifying Article 3, Section 2, Clause 1. Over time, it has
also been construed to prevent citizens of a state from bringing their
own state to federal court. 11th Amendment law is in a resurgence in
the 1990's as several Supreme Court cases make their mark (see the Current News Page).

This is one of the most used (and, perhaps, misused) parts of the
Constitution. It came out of the Civil War. Basically, it says that all men 21
or older will be counted to determine representation in Congress, with a
reduction in that count for anyone not allowed to vote; that no one in the
Confederate government (or any future government of insurrection) may be
members of the U.S. government (unless approved by a two-thirds vote); and that
all debts incurred by the U.S. to fight the Confederacy are to be paid, but
none of those incurred by the Confederacy would be.

It also states that no State shall make any law abridging the rights of any
of its citizens without due process of law. The 14th Amendment is important,
but the first clause is the most important. Prior to the 14th,
states were free to ignore the Bill of Rights; a series of Supreme Court
rulings made it clear that the Bill was to apply to acts of the Federal
Government only. With the establishment of the 14th, the Bill, or at least
parts of it, is made to apply to state law, too. This clause has resulted in
some good law, such as the Voting Rights Act. But States' Rights proponents are
opposed to the Amendment in parts and/or as a whole.

The Supreme Court, at first, did not allow the Due Process clause to be used
to expand individual liberties (1870's and 1880's). Eventually, though, it was
used to protect more than just former slaves. In the 1900's and 1930's, it
extended the clause to the protection of workers against state regulations,
allowing national standards for work conditions and minimum wage to be set. The
due process clause has been used to extend most Bill of Rights Amendments to
some extent, and is the basis for the "Right to Privacy" extended in the
infamous Roe v Wade decision. For a discussion, see this
document.

My opinion? Well, the Supreme Court, in the end, is the legal arbiter of
Constitutional interpretation. What they say goes. In my research, I found some
cases that I agreed with and some that I did not. In general, however, I can
say that I feel that as long as those rights don't impinge on another
individual's rights, the rights of the individual must outweigh those of the
state, and the Due Process clause of the 14th Amendment guarantees that.

Note: some have tried to argue that because of the representation reduction
clause and the implications on States' Rights, that the 14th Amendment is
unconstitutional. However, since it is an amendment to the Constitution, it
cannot possibly be unconstitutional. Some argue that it was passed in an unconstitutional way,
which is an interesting and plausible argument. The fact remains, however, that
it is a part of our Constitution, and deserves as much respect as any other
part, unless it is at some point repealed.

On April 13, 2000, the organization We the People Foundation for Constitutional
Education, Inc. sent delegates to the U.S. capital to present evidence that
the 16th Amendment was not properly ratified. The evidence that We the People
presented is available on their web site — this site will post updates
when available.

Cecil, of the newspaper/online column called The Straight Dope, has done
some research into some of the claims that the 16th was not properly ratified.
His columns are
online.

A very well-researched and literate "tax protester" FAQ has been published
on the net. A good read for
anyone contemplating a challenge to the income tax. There is also an
organization called "Quatloos" that aims to expose all tax evasion scams (and
there are quite a number of them). Visit them
for more information.

An interesting movie was made based on this amendment. Look for The
Enemy Within with Forest Whitaker, Sam Waterston, and Jason Robards. It
was a remake of 7 Days in May, which was made in 1964, before this
amendment was passed. More recently, the 25th Amendment has gotten the
attention of Hollywood writers. In the film Air Force One, the
President's aircraft is hijacked and the Vice President is urged to declare the
President incapacitated, though she ultimately resists the urging. In the world
of television, 24 and The West Wing featured the 25th
Amendment. In 24 the President refuses to attack three Middle Eastern
countries that appear to have backed a terrorist nuclear explosion on U.S.
soil. The Vice President assembles the Cabinet which narrowly votes to remove
the President. In The West Wing, the President removes himself
following the kidnaping of his daughter, fearing that he cannot make rational
decisions about the response while he is more concerned with his role as a
father.